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A Texas attorney’s perspective on the unaccompanied minor crisis along the South Texas border

By on July 8, 2014

Linda A. Brandmiller, chair of the State Bar of Texas Committee on Laws Related to Immigration and Nationality and director of ASI, Asociacion de Servicios Para el Inmigrante, recently answered questions via email from the Texas Bar Journal about the current humanitarian crisis on the Texas-Mexico border. Any opinions featured in this article do not represent the position or an official policy of the State Bar of Texas.

The State Bar Committee on Immigration and Nationality Issues visited the South Texas border during this past year and toured some of the immigrant facilities and shelters. How would you describe what you experienced?

We observed the system from both the enforcement perspective (U.S. Customs and Border Protection) as well as the unaccompanied minors perspective (the South Texas Pro Bono Asylum Representation Project receives indirect federal funding to assist the children caught in the immigration system at the border and without parents). Our visit in the fall of 2013 was at a time when border crossings and apprehensions are lower due to weather conditions and other influencing factors. We witnessed firsthand the extensive technology being utilized by CBP officials, including cameras, night vision goggles, and heat sensors, to locate people in the brush along the border. We also saw the detention facility, including the helera (“ice box,” a nickname stemming from its cold temperatures) where detainees are interviewed and processed. We took a tour of the border fence that weaves in and out along the border with vast spaces separating it and at times a significant distance inland from the actual border with Mexico. Lastly, we visited the La Posada Providencia shelter to witness its humanitarian efforts.

How is the current humanitarian crisis in the Rio Grande Valley different from other cases of undocumented immigration in the U.S.?

The Office of Refugee Resettlement is not efficiently moving unaccompanied minors through the system to be reunified with family in the U.S., which is what current law requires the government to do when dealing with non-Mexican children whose court cases are awaiting completion (we have a separate agreement with Mexico that requires turning children over to the Desarollo Integral de la Familia after screening them for being victims of crime and/or human trafficking). Though ORR, in 2012, opened emergency shelters in San Antonio after the number of unaccompanied immigrants doubled that summer from the year before (from about 6,700 to 13,600), ORR processed twice as many children in 2013 as in 2012 without any additional shelters or systems necessary, and this year’s numbers were projected and planned for as early as the winter of 2013—so they are not a surprise. The agency is inconsistent in its “requirements” for reunification, leading to some children being unnecessarily detained months after having determined where the family members are in the U.S.

This has effectively created a funnel that directly impacts the “warehousing” of these minors in emergency facilities. The majority (85 percent) of the unaccompanied minors entering the U.S. have family here to reunify with while their cases are pending so it becomes a question of processing them rather then keeping them in long-term detention. That is not the situation for the adult immigrant—a Congressional directive requires that 34,000 immigrant detention beds be filled every day, despite that many have no criminal history and have equities such as having U.S. citizen children or years living in the U.S. and legitimately could be released to their families until their cases are completed so that there is a final resolution.

What legal options are available to the immigrants for permanently staying in the U.S. under current law?

The most well known relief is asylum, which might be an option if the immigrant is afraid to return to their country for fear of persecution and they fall into one of the “protected” classes of race, religion, political opinion, nationality, or another particular social group. A U visa is an option if the immigrant is a victim of crime in the U.S, and a T visa is available for those immigrants who are victims of human trafficking. Children have the additional legal remedy of obtaining status as a special immigrant juvenile, which blends both state and immigration laws for minors who have been abused, abandoned, or neglected and cannot reunify with at least one parent.

What are the legal concerns for these immigrants?

The most pressing concern of the recently arriving immigrant is survival. They are confused by officers that drill them with questions and overwhelmed by a system that they don’t understand. Many are fleeing life-threatening violence and abject poverty. In fighting to remain in the U.S., whether detained or released, the primary concern of the immigrant is finding an affordable, honest, and trustworthy attorney who will listen to their story and assist them to stay in this country if they qualify for a legal remedy.

Many of these children and adult immigrants will eventually go before an immigration judge to make a case to remain in the U.S. Are they entitled to legal representation?

Perhaps “entitled” is the wrong word since they can certainly hire an attorney to represent them—but at no cost to the government. It is particularly disconcerting to see children sitting alone at the table in front of the judge, attempting to defend themselves against a government trial attorney. Although some nonprofit agencies get federal funding to assist with legal orientation programs, they are often severely restricted in their abilities to provide direct representation. To that end, in an effort to provide some assistance but not officially sign on to represent the child, there was a “friend of the court” model created by some, which State Bar Ethics Opinion 628 clarifies does create an attorney-client relationship as a result of the age, language, and likely perception of the child. Recently, House democrats introduced the Vulnerable Immigrant Voice Act of 2014 (HR 4936) to provide the same legal counsel for unaccompanied minors and mentally challenged individuals during immigration proceedings that current laws provide to criminals.

What is the current state of the immigration court system charged with handling this situation? Why is there such a backlog?

The immigration courts have not directly been affected by the increased number of immigrants apprehended at the border and will not be affected for some time due to the number of people already in system along with inefficiencies. The immigration court backlog is influenced by myriad factors, including judge vacancies that have not been filled, inefficiencies in docketing, lack of legal counsel at the start of a case, and length of time to defend various legal remedies.

There is a 90-day delay in issuing the Notice to Appear, which actually initiates the court proceedings with the expectation that the immigration court in the jurisdiction where the immigrant is residing will be the court that will hear the case. In that way, there is no expectation that the immigration courts along the border will be disproportionately impacted by the increased apprehensions. (And the current average length of time between the issuance of the NTA and the first court hearing is approximately 577 days.) Both children and adults are being moved around the country and are not remaining on the border. What you are seeing in these photos of children with silver blankets are at border patrol stations; they are not staying at these facilities. In Texas, immigrants are being detained around the state, including in Houston, Taylor, Waco, Amarillo, San Antonio, as well as some border towns.

Is there a way for Texas attorneys to help the immigrants through volunteering their legal advice or to help the state deal with the crisis?

Yes, even Texas attorneys who do not practice immigration law have a role to play, especially those who practice family law and criminal law—the two areas with the most overlap in immigration cases.There are many immigration attorneys as well as nonprofit agencies willing to mentor attorneys through these cases. Though access to detained children is strictly regulated, once released, they and their families are desperate for legal assistance. Attorneys can check with the U.S. Department of Justice’s Executive Office for Immigration Review for a list of free and low-cost service providers by state and city to narrow down the search for attorneys and programs already serving this population in their community [justice.gov/eoir/legalrepresentation.htm]. The Laws Related to Immigration and Nationality Committee of the State Bar of Texas stands ready to assist any attorney interested in helping the immigrant population.

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In 1882, hundreds of judges and lawyers gathered in Galveston to establish the Texas Bar Association, a volunteer organization. Half a century later, seeking to ensure that lawyers maintain the highest ethical standards, the association proposed legislation that would unify the bar and provide more stringent controls over standards of practice. The Texas Legislature passed the State Bar Act in 1939, mandating that all attorneys licensed to practice law in Texas belong to the State Bar of Texas.